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G.R. No. 138541 – 403 SCRA 713 – Criminal Law – Book 1 – Aggravating Circumstances – When Treachery is Not Present
On January 2, 1994, at around 1:45 pm in the morning, Leonardo Mallari and a certain Eduardo Colonia had a heated argument. In the course of the quarrel, Mallari kicked Eduardo. This was seen by Eduardo’s brothers, Rene and Jose Larry, hence they joined Eduardo in beating up Mallari. The brothers were alleged to be armed with pieces of wood and a bladed weapon. It was also alleged that it was Jose Larry who inflicted upon Mallari the fatal stab wound. Consequently, Mallari died due to the wound he sustained. Only Jose Larry was convicted. He was convicted of murder instead of homicide because the aggravating circumstance of treachery was appreciated against him.
ISSUE: Whether or not treachery is attendant.
HELD: No. Treachery was not proved. The victim, Mallari, provoked the fight when he kicked Eduardo. It was only then when the two brothers joined the fight. This fact indicated that there was no premeditation on their part, particularly on the part of Jose Larry. The crime committed is then changed to homicide. For treachery to be considered, it must be clear that the accused deliberately and consciously adopted the means of execution that rendered the person attacked with no opportunity to defend himself or to retaliate. Here, Mallari was not totally defenseless. He was forewarned, for when he kicked Eduardo in front of his brothers, he is well aware that the brothers were going to retaliate for their brother.